As a general rule, board members have a fiduciary duty to enforce the covenants. However, even though boards have this fiduciary duty, it does not require boards to go looking for violations. The board may want to receive a complaint before investigating and taking action. However, that choice, while entirely appropriate, could provide a number of defenses to homeowners who violate covenants. The defenses of selective enforcement, abandonment, and/or waiver could be raised by homeowners who receive notices of violations for things that others within the community have done without receiving a violation notice and assume that the association knew of the other violations and did nothing.  (Click here for a past newsletter article addressing the top 10 covenant enforcement mistakes associations make.)

Community Essentials - September 2006